Much has been said about Alito’s confirmation and the effect it would have on the long-standing precedent of Roe v. Wade, 410 U.S. 113, 93 S.Ct 705, U.S. Tex., 1973.  The popular view is that Mr.Alito’s confirmation will provide the means for a cadre of right-leaning Supreme Court justices to overturn Roe and send it off into the trashbin of legal history.  I would respectfully disagree with this result.

While it is clear that Roe will be under siege, I believe that the path of that attack will take a different route.  (Recent events seem to provide confirmation of this view.)  It is my belief that Roe will continue to stand as precedent, but in a severly diminished form.  Instead, subsequent court decisions will chip away at Roe until it becomes a nearly-useless precedent.

There are two principal reasons for the right to avoid an outright overturning of Roe.  Although each alone might prove sufficient reason to keep Roe viable, they provide a strong impetus when taken together.

First, the imminent overturning of Roe will mobilize the left like nothing else, and in turn generate even more attention.  It will provide a rallying point, causing unity amongst a laundry list of groups not always so inclined.  (Certain do-little Congress critters might even find themselves getting involved in the fray.)  In any event, a furor will result.  I would expect that the right would seek to avoid  such a scenario.  Instead, chipping away at Roe and slowly reducing the availability of abortion would accomplish a similar result without great “fanfare”.  Just yesterday the Supreme Court dealt with a New Hampshire law requiring parental notification.  CNN Link  The decision received relatively little notice.  While this was a unanimous decision in favor of the limitation of notification, the point here is that the gradual narrowing of Roe will gain considerably less attention than overturning it.  And gradually narrowing its application would be a far easier task.  (note that the decision returns the matter to the lower court for further proceedings.)

Secondly, maintaining the viability of Roe will prevent the abortion issue from returning to state control where there would be potentially 50 separate battles in 50 separate state legislatures.  (Although some states have existing laws which would come back into operation upon the demise of Roe.)  With this in mind, it becomes clear that the right would benefit by keeping in place a greatly weakened Roe, while continuing to reduce its range of application.

Overturning Roe would send the country back to the crazy quilt of laws that existed previously.  Laws might then follow the blue state/red state map, with certain exceptions.  (Colorado, being one possibility.)  Clearly, abortion would be illegal in some states.  But for other states and a large portion of the population, there would likely be little change.  I believe that the right has more to gain in the scenario set out above.